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The Hardrock Hotel and Casino has been hosting a popular daytime party, The Rehab Pool Party, since 2004. Plaintiffs own multiple trademarks referring to daytime parties, and the Rehab name and logo. For the past few years, Bella Vita Lakeside restaurant and bar in Indianapolis has hosted weekly pool parties called “Rehab+ Sundays.” Plaintiffs allege that Defendant’s party logo is confusingly similar to Plaintiffs’ owned trademarks. In fact, a local blog claimed “Bella Vita borrowed the “Rehab” theme from the Hard Rock Hotel and Casino.” Plaintiffs allege that Defendants have refused to cease their infringing use and intend to continue to organize and host the “Rehab+ Sundays” pool parties in the Summer of 2015.

Plaintiff alleges that Defendant is manufacturing and selling unauthorized “Energy Dome Hats,” the headwear popularized by American New Wave band DEVO.

Plaintiff claims to be the exclusive licensing agent of DEVO’s intellectual property rights. The Complaint references a pair of federal trademark registrations for DEVO in connection with “entertainment services” and “sound and visual recordings.” The ultimate question for this case however, which is less clear in the Complaint, is whether DEVO owns the rights to manufacture and sell Energy Dome Hats, which are “red in color, circular, and including four tiers of the circular design, with each tier becoming larger in circumference from the top of the hat to the bottom of the hat.”

Here’s an interesting case involving the trade dress of two Indianapolis neopolitan pizzerias (i.e. “fancy pizza”). Broad Ripple-based Napolese, owned by the same restauranteur as popular local brunch spot Patachou, has complained that the new Crust Pizzeria Napoletana has copied the look and feel of Napolese. Crust is owned by another local restauranteur, Mohey Osman, of The Egyptian Cafe fame.

Images from Complaint

In case you haven’t read it in awhile, here’s the preeminent decision in this area, the Supreme Court ruling in Two Pesos v. Taco Cabana.

I won’t get into the facts of Two Pesos (read the decision) or of the current Complaint (see below) but I have the following thoughts:

1. Taco Cabana was a chain with 6 locations open for 7 years by the time of the lawsuit. Napolese has had one location in Broad Ripple for four years. Is the Napolese trade dress well known, much less famous (to support the dilution claim), outside of mid-Marion County suburbanites?

2. Trade dress infringement cases are almost always brought in federal court. The Napolese complaint was filed in Marion County Court with no federal claims. This surely wasn’t by mistake, and makes me think a few things:

a. Napolese doesn’t consider their trade dress to be very strong beyond the local level.

The Complaint relies heavily on the fame of the Patachou brand but is light on discussion of the strength of the Napolese trade dress specifically, although the Napolese trade is what is actually at issue).

It’s possible the Complaint may just be a cost-effective method (cheaper than advertising) to alert the public that Crust is not associated with Napolese and also expose the many similarities, making Crust look tacky in the process. Napolese may be gambling that media pressure on Crust will force some modifications and they can drop the lawsuit before they get too deep.

The reality is that defending a lawsuit (particularly with a prestigious firm like Woodard Emhardt as counsel) is much more expensive than changing your logo and menu colors. The trade dress of Napolese and Crust is probably similar enough to defeat any counterclaim that this is a “frivolous” complaint, which could entitle Crust to attorney fees, so Napolese has the upper hand to drive this litigation as far as they want it to go.

3. One more thing to consider is the similarity of the trade dress of other neapolitan pizzerias across the state/country. If neopolitan pizzerias frequently utilize the stone oven/shield logo/bar stool/whatever, that info could affect both the “distinctiveness” analysis for the Napolese trade dress and the “likelihood of confusion” analysis in comparing Crust trade dress. I don’t usually eat fancy pizza so I can’t comment here.

What are your thoughts on the Complaint? More info about the lawsuit is available in the Indianapolis Star. Stay tuned to this blog for updates.

Here’s an interesting case involving a color trademark. Plaintiff Royal Purple, based in Indianapolis, owns several trademark registrations for the color purple in connection with high-performance lubricants. The Defendant, German-based Liqui Moly, is accused of selling lubricants with containers/packaging that is purple.

ChaCha Search, Inc. v. HTC America, Inc. et al

ChaCha is a Delaware corporation based in Carmel, Indiana. It provides a mobile-based search engine that utilizes the assistance of human guides to provide relevant search results. The CHACHA trademark was registered in 2007 for “Search engine services, namely, providing search engines for obtaining data on a global computer network; Search engine services, namely, providing specific information as requested by customers via the Internet in the nature of customized searching, in Class 42.”

Defendant HTC seeks to introduce a new smartphone called the “HTC ChaCha,” prompting Plaintiff to institute this action.

What do you think? Do you read the services listed in ChaCha’s registration above to include “smartphones”? Is ChaCha overreaching here? Would ChaCha’s money have been better spent on additional trademark registrations if they wanted to also protect ChaCha for “mobile phones,” which are in Class 9?

The Trustees of Purdue University v. Reinke Sports Group LLC et al

Purdue University, a world-renowned institution of higher learning, is located in West Lafayette, Tippecanoe County, Indiana. In late 2009, the Defendants announced their intention to hold a foot racing event called “Home of Purdue Half Marathon” in the Lafayette-West-Lafayette area. Purdue’s attorneys sent the standard cease-and-desist letters objecting to the use of the University’s trademarks. Nevertheless, Defendant continued to advertise the event as being connected to and affiliated with the University. The event was run on Oct. 24, 2010 without permission from Purdue University.

Traveler’s Joy Inc. v. Haycco, LLC

Straightforward trademark dispute with a hint of intentional imitation. Plaintiff has used the TRAVELER’S JOY trademark in connection with gift registry services since 2005. Defendant operates a honeymoon registry service at joyhoneymoon.com. The Complaint doesn’t specify how long Defendant has been using the JOYHONEYMOON mark but the copyright notice on their website is 2009.

CNH America, LLC v. Davis Equipment Sales & Service, Inc.

Plaintiff CNH has sold agricultural products under the NEW HOLLAND marks since 1957. Defendant was previously an authorized reseller, but continues to use Plaintiff’s marks after termination of the license arrangement. Further evidence that it makes sense to spend some extra time up front drafting a concise trademark license rather than resort to litigation on the back end.

The complaint alleges that Harlan Global is putting old Allison transmissions into new tractors and selling the tractors around the world as having new components. Harlan’s advertisements allegedly do not inform the purchasing public that the tractors manufactured and sold by Harlan include previously used components obtained from a source other than the original manufacturer (Allison) or an authorized remanufacturer. Allison has received complaints from consumers.